Friday, January 27, 2023

A significant loophole

In case you hadn't noticed, FYI, the public OIA request site, has been used to conduct a significant excavation into New Zealand's intelligence agencies, with requests made for assorted policies and procedures. Yesterday in response to one of these requests the GCSB released its policy on New Zealand Purpose and Nationality - basicly what it does to ensure that it complies with the requirement that it obtain a Type 1 intelligence warrant before spying on New Zealanders. The policy itself seems reasonably robust - if it is unclear whether someone is a New Zealander, they seem to apply a "reasonable grounds to suspect" standard, which at face value seems appropriately cautious. But there's a twist:

Only people are New Zealanders. Companies, organisations, vessels, aircrafts, and other vehicles cannot be New Zealand persons. Therefore, if the purpose of an activity does not include collecting information about a New Zealand person, a Type 1 warrant is not required.

This is due to the way s53 of the Intelligence and Security Act is phrased, referring only to NZ citizens and permanent residents (that is, natural rather than legal persons). But it seems to be a loophole, resulting in a lower standard of oversight for spying on organisations (basicly, they only need approval from the (captive) Minister, rather than from the independent Commissioner of security warrants). And the fact that it is being explicitly pointed out in the policy suggests that the spies encourage its use.

What sorts of spying might be covered by this loophole? Spying on NGOs, unions, political parties, and companies. Tracking ships and aircraft, if the purpose isn't to spy on a specific, known New Zealander. Depending on how creative the GCSB's lawyers are - and in the absence of outside scrutiny, they can be very creative indeed - it may even extend to tracking cars. And while some forms of spying on an organisation may be difficult to do without also spying on a person, there are forms which seem eminently do-able. Spying on financial transactions. Hacking its computers and looting its files. Classic black-bag jobs. If the SIS wants to, say, steal Te Pāti Māori's membership list, the law doesn't seem to require a Type 1 warrant. And that seems... dangerous. Because one of the reasons we require external, independent oversight of spying on kiwis (rather than just the rubberstamp of a captive Minister) is to protect our political and democratic rights. But those rights are not just exercised individually, but also collectively, through groups like NGOs, unions, and political parties. And spying on those organisations can be just as dangerous to our democratic rights as spying on individuals.

More generally, we have a two-tier system where spying on New Zealanders requires a higher degree of oversight than spying on foreign governments and terrorist organisations. And it just doesn't seem appropriate that NZ-based organisations are lumped in the second category rather than the first. Not does it seem appropriate to effectively allow the Minister to authorise spying on their political opponents with no independent oversight.

Fortunately, there's an easy fix for this: add a reference to New Zealand organisations (with an appropriate definition) to s53 of the Intelligence and Security Act 2017. And if the spies or the government doesn't want to do that, well, we can draw our own conclusions about what they've been up to.